The sentence of the Court of Justice of the European Union (CJEU) has tried to respond to one of the legs of the judicial conflict of the open process in Spain, with tentacles abroad. The Supreme Court has experienced it as a boost to the Spanish judicial action, while the defense of the independence leaders who fled and who are pending whether they are handed over for prosecution believe that there are loopholes to continue fighting. As of now, there is still a long way to go.
Who is right?
The question that the European court had to resolve is whether Belgium could reject the execution of the European surrender orders (OED), alleging that the Supreme Court does not have the competence to legally claim the four 1-O leaders pending trial –Carles Puigdemont, Clara Ponsatí, Toni Comin and Lluis Puig–. The sentence is clear when it says that the executing judicial authority that must review the arrest warrant, Belgium, cannot deny the surrender, on the grounds that that person runs the risk of being prosecuted by the country that claims him, in this case Spain , by a body that is not competent. Although it sets exceptions.
What are the caveats?
The CJEU clarifies that there are two exceptions to the general rule. One is that the court that has to decide on the surrender has "objective, reliable, precise and duly updated elements that reveal the existence of systemic or generalized deficiencies in the functioning of the judicial system of the issuing Member State or of deficiencies that affect guardianship". court of an objectively identifiable group of persons to which the interested party belongs. That is to say, that in Spain fundamental rights are systematically violated.
And the other exception is that the court in question verifies that in the specific matter the affected person provides data that can demonstrate that the body that is going to prosecute him "manifestly lacks competence."
How should one proceed?
The court specifies that in order to deny a delivery due to lack of jurisdiction of the court that claims it, it must be previously verified that this is the case. For the CJEU, it can only be considered that a body is not competent if there is no control within the country that reviews said body, in this case the Supreme Court. According to legal sources, in this case it would be the Constitutional Court, which has already endorsed the competence of the high court to prosecute the process. The court clarifies that a State cannot verify the competence of another court, because it goes against the principle of mutual trust. You could only do so if there is a "real risk" and you can verify it in a "concrete and precise" way.
How is it interpreted?
Puigdemont's defense believes that the sentence gives him the option of alleging the violation of the rights of a national minority in order to stop extraditions. From the Supreme Court, however, they believe that the CJEU has left Belgium with no room for manoeuvre, because Spain is not a country in which fundamental rights are systematically violated, but rather that it is within a rule of law, nor that there has been a political persecution against the independentistas.
Next steps?
The investigator of the case, Pablo Llarena, will reactivate the OED with respect to Puig in the coming weeks, once the Supreme Court definitively establishes how the crimes should remain after the repeal of sedition. Regarding the other three, we still have to wait for another European resolution that reviews their parliamentary immunity to be able to be tried in Spain. As soon as the pronouncement comes out, Llarena will officially demand his delivery again.
